jA littleA special master has concluded the proposed constitutional amendment for open primaries in Arkansas shouldn’t have been disqualified at the outset from further review by Secretary of State John Thurston. But he also made a finding on it and the petitions for a non-partisan redistricting commission that would disqualify both in the end.

Retired Circuit Judge John Fogleman, appointed by the Arkansas Supreme Court to review an appeal by  Arkansas Voters First (redistricting) and Open Primaries Arkansas, ruled partially in the latter committee’s favor on one point today but left open a key question that he would have decided in a way dooming both amendment campaigns.

The final decision will be up to the Supreme Court and opponents of the measures, chiefly the Arkansas Republican Party in both cases, will oppose approval.

The open primaries measure would end partisan primaries for state offices and put all candidates in a single primary. If a runoff was needed, the top four candidates would appear on the general election ballot and voters would rank them in order, with the top-ranked winning. It eliminates the cost of runoff primary elections and assures that a candidate with majority voter support wins the election, backers say. The redistricting amendment would create a non-partisan body to draw legislative and congressional districts, now controlled by Republicans in the legislature in the latter case and a partisan-controlled state commission in the former case.

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A release from the committee pushing the open primaries measure emphasized the positive:

“Today’s report is another step toward giving the people of Arkansas the chance to vote on this important issue,” said Stephanie Matthews, campaign manager of Open Primaries Arkansas. “We respectfully call on the Supreme Court to adopt the Special Master’s report and place the measure before voters on Nov. 3. The people of Arkansas are watching. They want to decide on this important issue.”

The Special Master report, prepared by retired Circuit Judge John Fogleman to aggregate the facts of the lawsuits, noted that “the Secretary of State erroneously culled 586 signatures on the Open Primaries Petition.”

“Arkansans want to see elected leaders work together to get things done,” said State Rep. Dan Douglas, R-Bentonville, chairman of Open Primaries Arkansas. “I know from experience how hard that is when our system is designed to reward candidates from the political extremes. Open primaries will make it easier for Arkansas voters to elect the candidates that best represent their interests.”

However, Fogleman’s decision was only certain as to the question of the first phase of Thurston’s signature review on open primaries, on facial sufficiency of signatures, with about 89,000 needed.

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He said another question lingers on both the open primaries proposal and the proposal for an amendment to create a non-partisan redistricting commission. That drive had similar paid canvassers and similar financial backers. Both were held to fall short by Thurston by tens of thousands because he refused petitions on which canvassers were said to have “acquired” rather than “passed” required criminal background checks. The Supreme Court has allowed the redistricting committee to continue gathering signatures to “cure” deficiencies in its initial submission.

The Arkansas law says background checks must be “passed” by paid canvassers. It specifically requires a federal background check by the State Police. The State Police may do state background checks but are prohibited by law from providing federal background checks and they are not available through other agencies. Wrote Fogleman:

The requirement in Ark. Code Ann. Section 7-9-601(b)(1) that a sponsor obtain from the Division of the Arkansas State Police of a federal background check is a requirement that a sponsor cannot meet. The proof established clearly that the Arkansas State Police cannot obtain a federal background check for the purposes of the statute.

The rub then, according to Fogleman:

The facts are not in dispute. The canvassers received the only background checks they were able to receive. But they didn’t receive a federal background check. He continued:

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If the Supreme Court concludes that there is only one reasonable interpretation that can be drawn from the undisputed facts in regard to the certification, then the question of the adequacy of the certification appears to be a question of law for the Court to decide. The facts are not in dispute, but the meaning of those facts is disputed. In the event the court finds that the application of the statute to the undisputed language of the certification is subject to more than one reasonable interpretation and is a question of fact, I find that the language of the certification does not certify that the canvasser has “passed” a background check and does not comply with Arkansas law. Neither petition in question has enough facially valid signatures to require verification of signatures if the certification given in this case is inadequate. If the court concludes the certification language complies with Ark. Code Ann. Section 7-9-601(b)(7) further analysis is required and the special master makes the following findings:

He went on then to check signatures that had been rejected on the open primaries petitions and found enough were culled improperly at the outset on technical points to qualify the petitions for full checking for valid signatures by Thurston’s office.

In an earlier ruling, the Supreme Court allowed the non-partisan redistricting to have a “cure” period of 30 days to gather more signatures.

But Fogleman concluded:

The fate of both amendments is now in the hands of the Supreme Court, where at least a couple of partisan Republicans await to pass judgment.

Here’s Fogleman’s ruling.

Opponents were pleased:

Jonelle Fulmer, Co-Chair of Arkansans for Transparency, issued the following statement:

“We are pleased with today’s findings and agree with the Special Master who determined that the language used to certify that canvassers had ‘passed’ a criminal background check did not—as a matter of fact—meet the statutory requirement to say ‘passed’. Simply put, neither one of these petitions were properly filed, based on the facts of the case.

“While the Supreme Court will have the final say, we believe this was yet another important step in our attempt to thwart the manipulation of our system of democracy by out-of-state interests. Arkansans deserve complete transparency at the ballot box, and we are committed to using every available resource under the law to challenge these unwanted ‘experiments’ on the Arkansas electorate.”

PS: A wrinkle the “passed” v. “Acquired” issue also exists in the campaign by eye docs to overturn the law giving optometrists expanded surgical procedures. So the final decision cuts many ways, not all partisan.